Citation Nr: 0616505
Decision Date: 06/06/06 Archive Date: 06/13/06
DOCKET NO. 03-13 609 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for residuals of a
cervical spine injury.
2. Entitlement to service connection for residuals of a
lumbar spine injury.
3. Entitlement to service connection for a gastrointestinal
(GI) disorder, as secondary to medication prescribed for
spine disabilities.
4. Entitlement to service connection for a psychiatric
condition, as secondary to pain associated with spine
disabilities.
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
L.J. Bakke, Counsel
INTRODUCTION
The veteran served on active duty from December 1968 to
February 1970.
This appeal arises before the Board of Veterans' Appeals
(Board) from rating decision rendered in April 2002 by the
Department of Veterans Affairs (VA) Regional Office (RO).
The veteran testified before the undersigned Veterans Law
Judge in July 2004. A transcript of this hearing has been
associated with the claims file.
This case was remanded for further development in February
2005. The requested development having been completed, the
case is now again before the Board.
FINDINGS OF FACT
1. The probative medical evidence does not show that the
currently diagnosed cervical spine disability is the result
of the veteran's active service or has been manifested to a
compensable degree within the one-year presumptive period.
2. The probative medical evidence does not show that the
currently diagnosed lumbar spine disability is the result of
the veteran's active service or has been manifested to a
compensable degree within the one-year presumptive period.
3. The veteran is not service-connected for a spine
disability, thus the currently diagnosed GI disability cannot
be found to be the result of a treatment prescribed for a
service-connected spine disability.
4. The veteran is not service-connected for a spine
disability, thus the currently diagnosed depression cannot be
found to be the result of pain arising from a service-
connected spine disability.
CONCLUSIONS OF LAW
1. A cervical spine disability was not incurred as a result
of active service. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103 and
5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102,
3.159, 3.303, 3.307, 3.309, 3.655 (2005).
2. A lumbar spine disability was not incurred as a result of
active service. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103 and
5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102,
3.159, 3.303, 3.307, 3.309, 3.655 (2005).
3. A GI disorder was not incurred as secondary to a service
connected spine disability. 38 U.S.C.A. §§ 1110, 1131, 5102,
5103 and 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.159, 3.303, 3.310, 3.655 (2005).
4. A psychiatric disorder was not incurred as secondary to a
service-connected spine disorder. 38 U.S.C.A. §§ 1110, 1131,
5102, 5103 and 5103A, 5107 (West 2002 & Supp. 2005);
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.655 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in
part, at 38 C.F.R § 3.159, amended VA's duties to notify and
to assist a claimant in developing information and evidence
necessary to substantiate a claim. Under 38 U.S.C.A. §
5103(a), VA must notify the claimant of the information and
evidence not of record that is necessary to substantiate the
claim, which information and evidence that VA will seek to
provide, and which information and evidence the claimant is
expected to provide. Under 38 C.F.R. § 3.159, VA must request
that the claimant provide any evidence in the claimant's
possession that pertains to a claim.
During the pendency of this appeal, in March 2006, the Court
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006),
holding that the VCAA notice requirements must also include a
provision pertaining to the rating of the disability and the
effective date of the award.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United
States Court of Appeals for Veterans Claims (Court) held, in
part, that VCAA notice, as required by 38 U.S.C. § 5103(a),
must be provided to a claimant before the initial unfavorable
adjudication by the RO.
In the present case, the RO sent the appellant a VCAA letter
concerning the issue of service connection in February 2001,
which was prior to the initial decision in this case. This
letter contained notice of the evidence required to prevail
in his claim, namely medical evidence reflecting current
diagnosis, evidence of an inservice injury, and medical
evidence reflecting that the currently diagnosed disabilities
were etiologically related to the inservice injury or
disease, or that they were diagnosed within a year following
discharge from active service. Additional letters were
provided to the veteran in November 2001, in which he was
advised that his service medical records were missing, and in
November 2005, at which time he was advised of the need to
appear for scheduled VA examination and that failure to do so
could result in the denial of his claim. See 38 C.F.R.
§ 3.655. The appellant was informed that VA would obtain
service medical records, VA records, and records of other
Federal agencies, and that he could submit private medical
records or authorize VA to obtain the records on his behalf.
The letters notified the appellant that additional evidence
was needed and requested that he provide it or notify the RO
where it could be obtained.
The actions of the RO ensured that the veteran had the
opportunity to submit additional argument and evidence, which
he did, and to address the issues at a hearing, which he did
before a hearing officer sitting at the RO in March 2002 and
February 2003, and before the undersigned Veterans Law Judge
in July 2004. In addition, this case was remanded for
further development, as noted above. However, the veteran
failed to show for VA examination, despite having been
informed of the consequences of doing so.
As for content of the notice, the letters substantially
comply with the specificity requirements of Quartuccio v.
Principi, 16 Vet. App. 183 (2002) (identifying evidence to
substantiate a claim and the relative duties of VA and the
claimant to obtain evidence), of Charles v. Principi, 16 Vet.
App. 370 (2002) (identifying the document that satisfies VCAA
notice); and, of Pelegrini, supra (38 C.F.R. § 3.159 notice).
Although the notice did not include any provision for
effective date or disability evaluation, should the benefits
sought be granted, the issue is moot as the claims are herein
denied.
Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to
assist the claimant in obtaining evidence necessary to
substantiate a claim. Under the duty to assist, 38 C.F.R. §
3.159(c)(4), VA will provide a medical examination or procure
an opinion if such is necessary to decide the claim. As
noted above, the case was remanded to afford the veteran a VA
examination, to include procuring opinions as to the etiology
of his currently manifested disabilities. He declined to
report for these VA examinations. However, the Board
observes that the RO obtained identified treatment records,
including SSA records and private treatment records, which
were considered with the rest of the evidence in the claims
folder in considering whether or not service connection could
be granted. Moreover, the Board observes that the veteran's
service medical records were apparently destroyed in the 1973
fire at NPRC. Accordingly, the RO made attempts to
reconstruct these records, requesting that NPRC separate
inquiries from the medical facilities at which the veteran
testified he was treated including the infirmary associated
with his assigned unit in boot camp, the 3rd RTBN, MCR Dep,
San Diego, California, health facilities associated with El
Toro Naval Air Station, and Long Beach Naval Hospital. The
NPRC completed the requested search but was unable to find
any further records. However, NPRC was able to determine
that all records associated with treatment at the infirmary
would have been associated with the service medical records
filed under the veteran's identification number. No
additional records were found, but a copy of the veteran's
medical evaluation board report was forwarded along with his
service personnel records. X-rays conducted would have been
retained for five years, then destroyed. A search for the
veteran's name on the roster for Long Beach Naval Hospital
found no entries for 1969 or 1970. Finally, a search for
treatment records at El Toro Naval Air Station medical
facilities revealed only the records pertaining to the
veteran's medical evaluation board. These records concerned
his asthma and made no mention of treatment, diagnoses, or
findings of the claimed disabilities. Nothing else was found
to be available. Notwithstanding, for reasons discussed
below, the Board observes that the missing service medical
records are not dispositive of the veteran's claims.
The veteran has not provided notice of any other additional
evidence to obtain. Thus, the Board concludes that the duty-
to-assist provisions were met.
Service Connection
The veteran seeks entitlement to service connection for the
residuals of injury to his cervical and lumbar spine on a
direct basis. He also seeks entitlement to service
connection for GI and psychiatric disorders as secondary to
the medication prescribed to treat his spine conditions and
as the consequence of long-term chronic pain he has suffered
as a result of his spine conditions, respectively.
Service connection may be established for disability
resulting from personal injury or disease incurred in or
aggravated by service. 38 U.S.C.A. § 1110. Regulations also
provide that service connection may be established where all
the evidence of record, including that pertinent to service,
demonstrates that the veteran's current disability was
incurred in service. 38 C.F.R. § 3.303(d).
Continuous service for 90 days or more during a period of
war, or peace time service after December 31, 1946, and post-
service development of a presumptive disease such as
arthritis to a degree of 10 percent within one year from the
date of termination of such service, establishes a rebuttable
presumption that the disease was incurred in service.
38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.
Service connection may be established on a secondary basis if
the claimed disability is shown to be proximately due to or
the result of a service-connected disease or injury.
38 C.F.R. § 3.310. In Allen v. Brown, 7 Vet. App. 439 (1995)
(en banc), the U.S. Court of Appeals for Veterans Claims
(hereinafter Court) held that secondary service connection,
as defined by 38 C.F.R. § 3.310(a), requires evidence
sufficient to show (1) that a current disability exists and
(2) that the current disability was either (a) caused by or
(b) aggravated by a service-connected disability.
Direct Service Connection: Cervical and Lumbar Spine
Disabilities
In the present case, the medical evidence reflects that the
veteran is diagnosed with cervical and lumbar spine
disabilities including degenerative joint disease of the
cervical and lumbar spine, degenerative arthritis of the
cervical spine, facet hypertrophy at C3-C4 and C4-C5 with
neural foramina stenosis and narrowing the cervical spine
canal, and degenerative disc disease in the lumbar spine at
L4-L5, L5-S1.
Service medical records, as noted above, are incomplete and
were noted to have been destroyed in the 1973 fire at NPRC.
However, the Board observes that the veteran testified and
submitted sworn statements that he sustained injury to his
cervical and lumbar spine during his active service in two
incidents. In the first, the veteran testified that he
slipped when getting out of his rack the first day of boot
camp and fell, striking his lower back and back of the head
on the lower rack. In the second, he testified that he was
moving empty pallets when another marine struck his load,
causing the pallets to fall. He bruised his chest and
sustained injury to his lower back. The Board finds the
veteran's testimony to be credible.
Even assuming, without finding, that the veteran did injure
his neck and lower back as described, this does not solve the
essential problem in this case. The essential problem is
that the evidence does not present medical evidence of a
nexus, or link, between such injury and the veteran's
currently diagnosed cervical and lumbar disabilities.
The first medical evidence of any complaints, findings,
diagnoses or treatment for a back disability is a reference
to treatment in September 1973 by the veteran's treatment
physician, Fred E. Feller, M.D., in a January 1975 statement.
Dr. Feller stated that he examined the veteran in September
1973 for complaints of pain in the left lower back and hip.
X-rays then showed a marked narrowing of L4-L5 and a pars
interarticularis defect at L5 on the right without evidence
of recent trauma. The physician diagnosed disc disease at
the L4-L5 interval. This is more than three years after the
veteran's discharge from active service and two years beyond
the one-year presumptive period. No opinion as to the
etiology was proffered, and the physician did not reference
any inservice injury or trauma. Thereafter, treatment
records dated in December 1974 show the veteran was treated
for an on-the-job injury occurring in November 1974. The
diagnosis was subacute lumbosacral strain in combination with
pre-existing congenital abnormality of L4, L5, and S1.
Again, there records do not mention the inservice injury. In
fact, it is not until 1989 that records show the veteran
reported a history of lower back pain or treatment from
service (in 1969). By this time, the records show the
veteran had been involved in two motor vehicle accidents, in
1979 or 1980, and 1985. He was involved in a third motor
vehicle accident in 1990.
The Board observes that in March 1994 a physician, Michael S.
Gorby, M.D., clarified the veteran's lower back disability,
stating that previous interpretations of clinical findings
reading post-surgical changes was a misinterpretation.
Rather, the extensive sclerosis exhibited along L4-L5
interspace was more consistent with prior injury with slight
slippage of the L4 vertebrae on the L5 vertebrae. In this
examination, Dr. Gorby referenced the 1969 inservice injury.
A private evaluation dated in November 1998 also referenced
the 1969 injury and noted that the veteran reported he was
told at the time of this injury that he had a diagnosis of
pars interarticular at L5. This evaluation further records
the veteran's reported history of steroid injections in 1970.
The Board observes that Dr. Gorby's opinion appears to be
based solely on a history as given by the veteran. There is
nothing in the opinion to indicate that Dr. Gorby made an
independent review of the entire record, to include available
service medical records; records from Dr. Felder who treated
the veteran in 1973 and, per the veteran's testimony, from
childhood to well after his discharge from active service; or
records from the work related accident in 1974 or the
multiple motor vehicle accidents in 1979 or 1980, 1985 and
1990 that the veteran had by that time sustained. Similarly,
the 1998 private evaluation shows review of records only from
1992, which post-dates the multiple post-service incidents
noted above. There are no records showing that the veteran
was treated with steroid injections in 1970. As above noted,
the earliest evidence of medical treatment present in the
claims file is the 1975 statement proffered by Dr. Felder,
which references treatment for the lower back in 1973. Given
the particular circumstances of this case and the multiple
intervening back injuries the veteran sustained post-service,
Dr. Gorby's statement, inasmuch as it could be construed as
an opinion linking the veteran's current conditions to active
service, simply is not probative. See LeShore v. Brown, 8
Vet. App. 406, 409 (1995) (A bare transcription of lay
history, unenhanced by additional comment by the transcriber,
is not competent medical evidence merely because the
transcriber is a health care professional); see also Miller
v. West, 11 Vet. App. 345, 348 (1998) (Further, a bare
conclusion, even one reached by a health care professional,
is not probative without a factual predicate in the record);
Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (In addition,
an examination that does not take into account the records of
prior medical treatment is neither thorough nor fully
informed); Black v. Brown, 5 Vet. App. 177, 180 (1995) (Also,
a medical opinion is inadequate when unsupported by clinical
evidence).
Given the circumstances of this case, the Board remanded the
veteran's claim in February 2004 for the specific purpose of
according the veteran an examination and to obtain an opinion
as to the etiology of his currently manifested cervical and
lumbar spine disabilities. The veteran declined to report,
despite being advised that to do so could result in the
denial of his claim under 38 C.F.R. § 3.655. Medical
evidence that could have been used to support the veteran's
claim could not thus be obtained.
The Board reminds the veteran that "[t]he duty to assist is
not always a one-way street. If a veteran wishes help, he
cannot passively wait for it in those circumstances where he
may or should have information that is essential in obtaining
the putative evidence." Wood v. Derwinski, 1 Vet. App. 190,
193 (1991).
There is no other evidence, medical findings, or medical
opinions of record establishing that the veteran's currently
diagnosed cervical and lumbar spine disabilities had their
onset during the veteran's active service or within the one-
year presumptive period following discharge, or are the
result of active service or any incident therein. The Board
carefully reviewed the entire record, including the veteran's
testimony and written statements. His statements, however,
cannot be competent evidence of a nexus between the claimed
conditions and his active service. Although lay evidence is
acceptable to prove the occurrence of an injury during active
duty or symptomatology over a period of time when such
symptomatology is within the purview of or may be readily
recognized by lay persons, lay testimony is not competent to
prove a matter requiring medical expertise, such as an
opinion as to medical causation. See Espiritu v. Derwinski,
2 Vet. App. 492, 494-495 (1992). Absent medical evidence of
a causal link between the currently diagnosed cervical and
lumbar disabilities and the veteran's active service, the
Board finds the claims must be denied.
After review of the record, the Board finds that the
preponderance of the evidence is against service connection
for the residuals of cervical and lumbar spine injuries.
Accordingly, service connection is therefore denied.
Secondary Service Connection: GI and Psychiatric Disorders
As noted above, the veteran is also seeking service
connection for GI as secondary to the medications prescribed
for his spine disabilities, and a psychiatric condition,
depression, as secondary to chronic pain that has resulted
from his spine disabilities. At his February 2003 hearing,
the veteran clarified that he was claiming service connection
for these disabilities only on the theory of secondary
service connection. Since these issues were adjudicated as
secondary service connection issues, the decision will be
limited to a consideration of these issues on a secondary
basis.
Medical evidence present in the claims file establishes that
the veteran has a history of GI bleed as the result of
prescribed medications. These records reflect current
diagnoses of intermittent anemia and diverticulosis.
Moreover, these records reveal he is diagnosed with
depression that was found to be the result of long term pain
associated with his spine problems.
As service connection for the residuals of injury to the
cervical and lumbar spine is denied. Service connection
cannot therefore be granted on a secondary basis for these
conditions. See 38 C.F.R. § 3.310. Accordingly, secondary
service connection is therefore denied.
ORDER
Service connection for residuals of a cervical spine injury
is denied.
Service connection for residuals of a lumbar spine injury is
denied.
Service connection for a GI disorder, as secondary to
medication prescribed for spine disabilities, is denied.
Service connection for a psychiatric condition, as secondary
to pain associated with spine disabilities, is denied.
____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs